COURT FILE NO.: 12/0000641/0000
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Samuel AMPONG
Michael Lockner, for the Crown
Monte MacGregor, for the Defendant
HEARD: October 25, 2013
KELLY J.
Reasons for SENTENCE
[1] Mr. Samuel Ampong has been found guilty of aggravated assault and failing to comply with his recognizance following a plea. He stabbed a person, unknown to him, in the library on the main floor of Toronto’s City Hall. Mr. Ampong now comes before me for sentencing.
[2] Crown Counsel seeks a custodial sentence of 7 years less time served (almost 2 years). Counsel for Mr. Ampong submits that the appropriate sentence is time served with an additional sentence of two years in custody followed by three years of probation. He submits that Mr. Ampong would be supervised in the community longer if such a sentence was imposed.
[3] I find that the appropriate sentence for Mr. Ampong is a sentence 6 years less time served of two years. What follows are my reasons.
The Facts
[4] The facts giving rise to the findings of guilt may be summarized as follows:
a. Mr. Ampong and the victim, Mr. Abdi Osman, were strangers to each other at the time of the incident. They have no previous history. Both were homeless at the time. Mr. Ampong has a history of schizophrenia.
b. On Friday, November 4, 2011, Mr. Osman attended at the library at 100 Queen Street West, which is located on the ground floor of Toronto’s City Hall. Mr. Osman intended to use the public computer terminals which allow members of the public access to the Internet for 15 minute sessions.
c. At some point in the early afternoon, Mr. Osman lined up to use the computer. Mr. Ampong was already using one of the computer terminals when Mr. Osman arrived.
d. Mr. Osman interrupted Mr. Ampong and asked him how long it would be before he finished. Mr. Ampong did not respond. Eventually, when the 15 minutes he was allotted elapsed, Mr. Ampong left the computer and walked away from the terminals. At this point, Mr. Osman began to use the computer.
e. A short time later, at approximately 2:50 p.m., Mr. Ampong returned to the area. He walked behind Mr. Osman as he was using the computer. Mr. Ampong positioned himself behind Mr. Osman and without warning began to strike him repeatedly about the head and neck. Mr. Ampong was clutching a knife in his hand as he attacked Mr. Osman, whose heavy winter coat was ripped by the blade as he was being struck. As a result of these blows, Mr. Osman suffered deep stab wounds to the back-right area of his neck. Mr. Ampong’s expression was described by witnesses as “blank” during this assault.
f. Mr. Ampong was holding the knife in such a way that he was slicing into his own fingers as he was striking Mr. Osman.
g. After stabbing Mr. Osman, Mr. Ampong stated something to the effect of “now you’re in China”, which was overheard by several witnesses. Mr. Ampong then left the scene, walking briskly out of the building. A witness to the stabbing called police and followed Mr. Ampong from the scene. He guided officers to his location.
h. Mr. Ampong was arrested at the corner of Queen Street West and University Avenue. He was found in possession of a knife covered in blood which was tucked into his sock. Mr. Ampong gave a statement to police following the incident. He admitted stabbing Mr. Osman stating that Mr. Osman was a nuisance and that the other patrons of the library were likely happy with what Mr. Ampong had done. He also expressed a fascination with “Bruce Lee”, the Chinese martial arts film star.
i. Mr. Osman, initially unaware of the extent of his injuries, claimed he was fine and began to walk away. He was losing a great deal of blood and eventually paramedics were called. Mr. Osman was taken to St. Michael’s Hospital for emergency surgery.
j. Mr. Ampong was arrested and released from custody on terms akin to house arrest. On January 19, 2012 (just two months after this offence) it is alleged that he breached a term of his recognizance by failing to be in his place of residence except in the continuous company of his surety. This gave rise to a second charge before the Court that was withdrawn by Crown Counsel.
The Impact on the Complainant
[5] During the emergency procedure at St. Michael’s hospital, Mr. Osman required a significant blood transfusion (11 units). Surgery revealed that his right internal jugular vein was cut. He required over 5 hours of intense surgery and was in hospital for 11 days.
[6] Mr. Osman provided a Victim Impact Statement for consideration on sentencing. He described that he has been the subject of three major surgeries as a result of this incident. The third was a nerve stimulation surgery.
[7] As a result of the stabbing, Mr. Osman also suffered injuries to his vocal chords (resulting in a raspy voice that persisted for over a year) and nerve damage to his right arm. His arm was still in a sling at the time of the preliminary inquiry: over a year later.
[8] Mr. Osman reports that he can only use 70% of his hand and therefore he is unable to use it as he had before the offence. For example, he is unable to lift anything above his right shoulder which has impeded his employment. He also has deep scars running “up” his neck and down through his chest to his abdomen.
The Circumstances of the Offender
[9] Mr. Ampong is currently 24 years of age. He does not have a criminal record. His parents were born in Ghana, were married and emigrated to Canada. They separated when Mr. Ampong was an infant. His mother moved to the United States and commenced a new relationship which produced Mr. Ampong’s step-sister – Nana (four years his junior).
[10] Mr. Ampong never really met his father who has returned to Ghana. His father has been contacted and the probation officer who prepared the pre-sentence report was advised that his father would like Mr. Ampong to live with him upon release.
[11] Mr. Ampong was raised in the Toronto area by several of his mother’s friends. There was no single person who provided care for Mr. Ampong and this continued until he was approximately 12 years of age. From ages 12 to 17, Mr. Ampong lived in Atlanta with his mother but left when his mother was incarcerated for fraud and because he could not secure employment. His mother died in January, 2013.
[12] Mr. Ampong’s half-sister is currently attending Georgia State University. Mr. Ampong has had no contact with her over the past year.
[13] Mr. Ampong attended school in both Toronto and Atlanta. He participated in the basketball program, but had difficulties academically. He completed grade 10 in addition to a few grade 11 courses. Mr. Ampong moved frequently due to his family’s poor finances and his mother’s repeated return to custody for fraud related offences.
[14] In and around the time of his arrest, Mr. Ampong had been in Toronto for approximately three years. He has been living in various shelters in the city and occasionally he stayed in the homes of people he met in the shelter system. He was living off the allowance monies provided by such shelters at the time of his arrest.
[15] In the month leading up to the offence, Mr. Ampong said that he was feeling “hopeless”. He thought about getting a job but decided there was no point in looking as he had tried so many times prior. As he described himself: “I had no goals, just kick back, smoke weed, no strategy for the future.” He says that he smokes marijuana as a “spiritual thing” in addition to listening to music and watching Bruce Lee.
[16] Mr. Ampong described that his typical day involved visits to various libraries while waiting for meals at the shelter. He used computers at the library to listen to music or watch martial arts videos on You Tube. He did this regularly in the library at Toronto City Hall.
[17] Mr. Ampong has admitted to idolizing Bruce Lee.[^1] He says that he practices “slap box[ing]” and that he started hearing the voice of Bruce Lee when he was in grade 7. He reported that he has been hearing the name Bruce Lee “100 … times a day” and reported that the voices had been more active in 2009.
[18] Mr. Ampong was seen by a psychiatrist at the Trillium Health Centre over three years ago. He was brought to the facility after police found him wandering in the street without a shirt in the early morning of May 30, 2010. He was admitted to the psychiatric unit on an involuntary basis.[^2] He was diagnosed as having psychosis, “schizophreniform disorder and delirium were on the differential diagnosis”. After stabilizing, he was released on June 4, 2010 and given a one week prescription of olanzapine: 10 mg nightly. He stopped such treatment and medication because “he did not think it had any effect.”
[19] Following a consultation in late 2011, Mr. Ampong was diagnosed with schizophrenia by Dr. Truong and prescribed risperidone (1.5 mg).
[20] After his arrest on this offence, Mr. Ampong was seen at the Toronto Jail by a psychiatrist. In the Health Care Transfer Summary dated March 18, 2013, the psychiatric nurse at the Toronto Jail noted that Mr. Ampong received risperidone (6 mg) until May, 2012 when it was inadvertently discontinued. She described him as “definitely psychotic, hearing voices telling him to harm himself”. She further described him as “very quiet, non-aggressive” not “a problem”.
[21] Mr. Ampong engaged in an assessment at CAMH since being incarcerated on these charges. He was described as “polite and cooperative” during such an exercise. He was found fit to proceed with the court process. Accordingly, the defence of not criminally responsible was not available to him.
[22] It is the opinion of CAMH that Mr. Ampong was most likely suffering from “schizophrenia” at the time of the offence.[^3] They concluded that he has exhibited psychotic symptoms that appear to be relatively protracted.
[23] Mr. Ampong denies that he has been hearing voices in his head during his incarceration. He says that he sometimes feels paranoid. He denies ever feeling delusional or experiencing symptoms suggestive of a major depressive episode or mania. He does not appear to have any suicidal or violent ideation. It is reported that Mr. Ampong does not believe he suffers from schizophrenia or mental illness. He believes that he does not require medication because it has no effect on him.
Analysis
[24] Both Counsel capably made submissions and provided cases supporting their positions on sentencing. However, there is one case I found most useful as a precedent: R. v. Roberts.[^4] In that particular case, Mr. Roberts stabbed the victim who was sleeping on a bus. The victim was a stranger to Mr. Roberts. Following the stabbing, Mr. Roberts got off the bus. The victim was hospitalized and diagnosed as having suffered a superficial wound that was treated with Polysporin to avoid infection. Mr. Roberts was a recidivist and the Ontario Court of Appeal observed that his record for violence appeared to be escalating in seriousness. Mr. Roberts was sentenced to 5 years, 9 months in prison. The Court held that seven years was an appropriate sentence, but Mr. Roberts was given a 2 for 1 credit for time served pre-sentence.
[25] Although useful, there are two significant differences between Mr. Roberts’ and Mr. Ampong’s cases. Mr. Roberts was a repeat offender with entries for violence on his record. At the time of the offence, Mr. Roberts was on probation for two prior assault and weapons convictions. Mr. Ampong has no record and no history of violence. This occurrence has given rise to his first period of incarceration and the first entries on his criminal record.
[26] I accept that 4 to 6 years in custody is the appropriate range for offences of this nature as set out by Code J. in R. v. Tourville[^5]. In that particular case, Code J. provided an overview of the range of sentences available in circumstances involving aggravated assault. He held at para. 30 that:
At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self defence. [citations omitted and emphasis added].
[27] Mr. Ampong is not a recidivist nor does he have a lengthy criminal record. However, this was an unprovoked attack on an unsuspecting victim which places him as an offender within the range outlined by Code J. for such offences.
[28] In coming to the conclusion that a global sentence of six years is appropriate, I consider the following to be the mitigating factors on sentencing:
a. Mr. Ampong is relatively young and is a first time offender. He has no criminal record.
b. Mr. Ampong has pleaded guilty which I accept as a sign of remorse. It has also provided certainty of result.
c. Mr. Ampong’s plea of guilt has avoided the necessity of the victim testifying in this proceeding. This has saved him the horror of reliving this tragic event.
d. Mr. Ampong’s plea of guilt has saved the system numerous days of valuable court time. Numerous witnesses would have been called at trial and the trial itself may have lasted many days.
e. Mr. Ampong has been in custody at the Toronto West Detention Center since November 25, 2011 (approximately 23 months). This is the first time he has been imprisoned.
f. Mr. Ampong has expressed remorse for this offence and has indicated that he would like to apologize to the Court and to the victim.
g. Mr. Ampong’s upbringing did not provide him with the care of a primary and consistent caregiver. He has, most recently, lived in the shelter system.
h. Mr. Ampong was hospitalized a number of times before this offence and was diagnosed with schizophrenia. Shortly before this offence, Dr. Truong reported that Mr. Ampong was suffering from “long-standing hallucinations and was ‘preoccupied’ with Bruce Lee”. Approximately three months after the offence, Mr. Ampong was assessed at the Toronto Jail and was determined to be psychotic. CAMH diagnosed him as a schizophrenic.
i. Mr. Ampong’s medical history would show that he responds well to medication.
j. Mr. Ampong indicated that he is prepared to comply with any programming and terms as set out by the Court.
[29] I consider the following to be aggravating factors on sentencing:
a. Although Mr. Ampong may have provided a rational explanation for the offence (he reported feeling hopeless as he did not have permanent housing or employment and was carrying a knife because he had been involved in an altercation in a shelter), the damage caused by his actions is devastating.
b. Mr. Ampong’s behaviour was disproportionate to the provocation of the victim (i.e. that the victim was bothering him as corroborated by the witness statements).
c. The injuries suffered by the victim are severe and the impact on his mobility appears to be significant affecting his employment.
d. As CAMH concluded: “While his [Mr. Ampong’s] behaviour may not appear to be ‘rational’ his psychosis was not, on a balance of probabilities, of such a severity as to deprive him of the capacity to know that his behaviour would be seen as wrong by an ordinary person.”
e. Although Mr. Ampong is prepared to comply with any terms set out by the court including programming, he is not willing to submit to any treatment for mental health.
f. Mr. Ampong breached the terms of his release resulting in a conviction for failing to comply with his recognizance.
[30] In determining the appropriate sentence for Mr. Ampong, I am guided by s. 718 of the Criminal Code which sets out the objectives of sentencing. Although denunciation and deterrence are relevant factors in this proceeding, I do accept that the objective of the separation of offenders from society where necessary assumes importance in this case.
[1] Mr. Ampong attacked an unsuspecting victim who was using a library computer as he was entitled to do. He was savagely attacked by Mr. Ampong, in public, and he suffered significant injuries. Mr. Ampong has been diagnosed with a psychiatric illness which he refuses to acknowledge. Accordingly, there must be a separation of Mr. Ampong from society in order to protect members of the public. Although the Crown’s submission that an additional five years in custody is not unrealistic, I am persuaded that 4 more years in custody in these circumstances is appropriate. In coming to this conclusion, I am mindful of the direction of Rosenberg J.A. in R. v. Borde[^6] that a “first penitentiary sentence should be as short as possible”.
[31] Accordingly, his record will reflect the following: aggravated assault - 6 years less time served of two years.
[32] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for life and a DNA order pursuant to s. 487.05(1) authorizing the taking of a DNA sample.
Kelly J.
Released: November 14, 2013
COURT FILE NO.: 12/0000641/0000
DATE: 20131114
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Samuel AMPONG
Reasons for sentence
Kelly J.
Released: November 14, 2013
[^1]: Mr. Ampong had a Psychiatric Consultation with Dr. Hau Truong dated “October- November 11” that was referred to in the letter dated April 22, 2013 provided by CAMH.
[^2]: This information was provided in the Trillium Health Centre medical records.
[^3]: These diagnoses are based on the criteria sets published in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revison (DSM-IV-TR).
[^4]: [2011] O.J. No. 1542 (C.A.)
[^5]: 2011 ONSC 1677, [2011] O.J. No. 1245 at para. 30
[^6]: (2003), 2003 4187 (ON CA), 63 O.R. (3d) 417 (C.A.)